Separation feels like you are trapped in a concrete mixer: perennially spinning with no end in sight. It is common to feel a complete loss of control when your partner leaves. Even if you are the one who has decided to leave, the process of separation will likely have you feeling that you have no control over the legal processes. When your world is tipped upside down and you feel at your lowest ebb, you may well need to engage with lawyers and the Court to sort out the parenting or financial aspects of your relationship. You may have had only limited previous experience dealing with lawyers or the court system. You may have had a conveyancer, or a lawyer help you buy a property or draw up your Will. Other than that – the world of lawyers and Courts is confined to court room dramas on some streaming service. It can be hard to know who to use and who to trust. Once you have decided to engage a lawyer, it is hard for you to know if they are any good. All of these feelings are understandable and more common than you might think. The following are some handy hints for better understanding the litigation process and getting the best out of your lawyer.
1. Listen to and read the advice you are given.
Do you know why you are receiving the advice from your lawyer? If not, ask why.
Do you understand the advice once given? If not, ask for clarification.
What is legal advice based on? Legal advice particularly in Family Law is based on the Family Law Act and cases referred to as precedents but also can relate to other areas of the law as family law issues rarely occur in a vacuum. It can also include the experience and common sense of the lawyer. They will best understand what pathway awaits you if you do not listen to and act on advice. You may not. Trusting your “gut” is not the wisest policy when you do not know where the quicksand is.
Why doesn’t my family lawyer know all the answers? Family law is one of the few areas which can touch on almost every aspect of law depending on the complexities and the facts of a given case. Your matter may have issues and areas of dispute which require legal advice on other areas such as property, tax, trust, equities, employment law, deceased estates, criminal law, social security etc. If you think about it, For this reason, your family lawyer may be the one who identifies the legal issue but may also not be in position to provide the requisite legal advice to you. This may necessitate another lawyer from another area of law to provide you with this advice. That does not mean your family lawyer does not know what they are doing. In fact, your family lawyer is ethically compelled to ensure your best case is put before the Court and as such this may require advice in relation to another area from another lawyer.
2. Learn to ask questions.
As the client you can ask questions. That may seem self-evident but sometimes clients feel uncomfortable or are cost conscious and therefore struggle on their own to make sense of what is happening in their matter. Worse, they make decisions without consulting their lawyer which sometimes sees their matter spin off in an unintended and disadvantageous direction. Whilst there is a cost attached, it is far preferable to ask and understand advice than struggle in ignorance or make missteps in your matter because you did not fully understand.
It may be you will not know all the questions to ask at the start of your matter, but you can ask and go on asking questions. Be mindful of the cost to you of lawyers answering those questions so be sure you have read any advice from your lawyer first. It is not uncommon for family law clients to not read letters that their lawyers send to them. Do not be one of those clients. If the letter is complex – again the lawyer may not be to blame. Yes, lawyers should speak and write in a manner so that their clients understand what the lawyer is saying but sometimes the law is complex and difficult to explain in simple terms. If you have a question relating to advice, reference the advice and which aspect of the advice needs clarifying.
3. Ensure you understand your options.
Has your lawyer explained the pathways to getting the concrete mixer to stop and allow you to get on with your life? The process of how best to end your post separation issues will vary depending on the pathway taken. You do not have total control over the given pathway as this in turn may depend on the attitude taken by your ex. Each pathway – has a timeframe and a cost attached to it: whether it be lawyer led negotiations, mediation – either with or without lawyers such as with a Family dispute resolution practitioner or private mediator or indeed with one of the many organisations which offer family law mediation, or an exchange of written offers, or litigation. You should ask about the possibility, cost, merit and process associated with each so you can make informed decision about how to best proceed.
4. Court is a place of last resort – but you may not have a choice.
It is trite but true to say that the process over which both clients and their lawyers have least control is Court. Once a matter proceeds to Court, the judicial officers have control over what happens next. Yes, there is a pathway and orders are made along the way to make it clear about who has to do what by when, but that does not make it easy for the clients to know when the mixer is going to stop. The outcome is uncertain and the judicial discretion which can be exercised in relation to parenting or financial outcomes is extremely broad.
This is why going to court should be viewed by clients and those advising them as a place of last resort. Many lawyers say this, but it also true to say that clients pay more legal fees when they fight as opposed to when they settle. Of course not all clients are willing to or able to pay for the services of lawyers and we understand that. The client who litigates should not blame the lawyer for the requests for payments or when a lawyer scopes what the process and the steps along the way will cost the client. Family lawyers are obliged to do so and provide a worst case figure.
5. If you are trying to settle – ensure you are informed and involved.
If you are negotiating, mediating or litigating, and proceeding on these pathways with or without lawyers, ensure you have current legal advice about a possible range of outcomes. Do not blame your lawyer if they are imprecise about what an outcome in Court may look like as the Court has a very broad discretion when determining a financial outcome and must make decisions relating to parenting which are in the best interests of children. That is not the same thing as you decided what is in their best interests.
You will never really get everything you want and be careful about using any of the pathways to seek revenge or seek affirmation that you were right, and they were wrong. You will not receive this in any of the pathways. What may happen is that you will continue the dispute and the time it takes therefore to settle and get on with your life. Do you want to be right, or do you want to settle?
Don’t assume you need to hear it from a judge. If you want to go all the way to hear it from a judge, you need to realise that a judge is but one person and their judgment is but one opinion (albeit binding you both). Judges are there to apply the law and make a decision. They are not emotionally invested in the outcome. They do not have to live with the outcome they pronounce but clients and their children do. As many judges say – the best people to make decisions about their financial futures and their children are the parties to proceedings and judges only step in when people cannot make those decisions. It is not the judges’ fault or the court’s fault if couples cannot resolve their matters.
6. Can you reach agreement quicker?
In parenting matters, it is always hoped that litigation can be avoided. There are some cases where the allegations of abuse or parent behaviour are so serious and so adverse to the child’s best interests that compromise should not be reached. Those, sadly for the child, are the matters which often require judicial intervention. If that is the case, do not prolong the timeframe by vacillating. Commit to ensuring progress to conclusion. Sometimes reportable family therapy can be used to provide parents with insight either to the issues, the child’s wishes or their own behaviour. The reports which can be produced then provide the parents with a reference point for hopefully resolving the matter.
If there are no serious allegations but nonetheless parenting is problematic (may have always been the case) ask to be referred to those who work with families and children to create a framework for ensuring the children’s best interests are properly identified, any risk factors are addressed or eliminated, and you are both given insight and guidance as to what might work more effectively for the children.
There are ways to help clients make good decisions and not get backed into a corner from which they cannot escape. A good lawyer is one who identifies what the client’s roadblocks are and also looks for opportunities to bring disputing couples closer together in their thinking, attitude and get the client ready to make a deal. A poor lawyer is one who lacks skills, does not challenge the client, does not identify the underlying fears, concerns or misconception that the client adheres to. The poor lawyer, often at the request of the client, fans the flames of a dispute.
A good lawyer is someone who also looks for other professionals to work on the client’s team – to surround and support the client in making decisions relating to parenting but also in relation to money. Court will teach the client about the fight and in relation to financial disputes in particular – it is often focused on the past. It does not give the clients the skills they need to learn how to co-parent effectively into the future. It does not teach them about how to thrive financially after your assets are divided. The Court is not failing in this regard – it is simply not the role of the Court to so guide, teach and support. The professionals can shift the client towards letting go and accepting the future. Fear often holds that client back. Fear of the unknown. Together the professional team can eradicate those fears and enable the client to see a future.
7. Get out of your own way.
You may be the reason you are not resolving your financial dispute. You may not have the skills or the confidence to cut the financial tie or dependence on your former partner. You may be driven by revenge and the need to be right or victorious – and are using the financial proceedings to punish your ex. Financial matters require a rigor and there are certain steps which are not negotiable so when you want to corner cut to save costs and your lawyer is strongly advising you against doing this, make sure you understand why the lawyer is recommending a pathway. You may need to work with others who have the skills to shift you from stuck to settled. That is not always your lawyer.
Your lawyer may work as part of a team to assist clients may well effect how long the concrete mixer churns. The strategies a good lawyer can employ to limit or manage the dispute (and indeed your own behaviours and reactions to what is occurring) are critically important to the outcome and how long you stay in the mixer.
Think about lawyers like cars. How many speeds do they have in their gear box? It is a two speed motor mower or is it a state of the art car? How adaptive are they in their thinking? Have they bothered to really get to understand their client and what is critically important to their client? Or are they simply imposing the precedent of other families’ disputed outcomes on their current clients.
Caroline Counsel
Accredited Family Law Specialist/Collaborative Professional/Family Dispute Resolution Practitioner
Principal: Caroline Counsel Family Lawyers
P: +61 3 9320 3900
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as of 4 April 2024. We recommend you obtain specific advice relevant to you and your family’s situation.
